Officials: Portsmouth's disclosure rules need update

Thursday

Apr 24, 2014 at 2:00 AM

PORTSMOUTH — A proposal to require elected and appointed city officials to file financial disclosure forms has gained traction with a new legal opinion written by a staff attorney for the New Hampshire Municipal Association, which says the city charter already requires that disclosure.

Elizabeth Dinan

PORTSMOUTH — A proposal to require elected and appointed city officials to file financial disclosure forms has gained traction with a new legal opinion written by a staff attorney for the New Hampshire Municipal Association, which says the city charter already requires that disclosure.

The opinion by NHMA Attorney C. Christine Fillmore was presented to the City Council on Monday night and states that it was written at the request of councilors Esther Kennedy and Jack Thorsen. Kennedy said Wednesday that no one is suggesting any current elected or appointed city official has a financial conflict of interest and the effort comes in response to citizens' requests.

Fillmore wrote in her report that state law and court opinions are clear in stating municipal officials have disqualifying conflicts if they have a direct personal or financial interest in the outcome of a matter before them. She also noted that disclosure of conflicts are "an important part of the larger issue of transparency."

"The reasons for this are obvious: A person cannot serve two masters at once," the NHMA lawyer wrote. "The public interest must not be jeopardized by the acts of a public official who has a personal financial interest which is, or may be, in conflict with the public interest."

Fillmore wrote that Portsmouth's city charter requires the City Council to establish a conflict of interest ordinance that mandates financial disclosure by all elected and appointed police, school and municipal officials. That would include volunteer members of land-use boards, police and fire commissions, the City Council, the city manager and the School Board.

The city charter also requires those officials to disclose, through sworn statements, all sources of income and assets, including stocks and real estate holdings, Fillmore reported. That portion of the charter, adopted in 1987, also requires the city to have review boards and procedures to determine violations of the ordinance, mandatory penalties for violations and "comprehensive definitions" of all potential violations, the NHMA lawyer wrote.

Fillmore reported that Portsmouth's administrative code and its charter are not in agreement in terms of financial disclosure requirements and that it is possible they were at one time, but changed over the years so they no longer reconcile. The NHMA lawyer recommended the city's administrative code be "fixed," then, if the council "decides it is necessary," it could proceed to amending the charter.

Thorsen said at Monday's City Council meeting that he was "pleasantly surprised" with Fillmore's detailed legal opinion, while also noting her report finds the city is "not in compliance" with financial disclosure obligations.

"At a very minimum, we have a duty to make the ordinances comply with the charter," he said. "If we don't do it, we're probably failing in our duty in terms of compliance."

"We took an oath to uphold the charter," Kennedy said. "So we're not following the oath we took."

Thorsen noted that Mayor Bob Lister, who is on vacation, has committed to scheduling a work session to discuss the matter, while Thorsen called for that work session to come "sooner rather than later." Thorsen said he provided the council with the NHMA report "so everyone sees the progress of the project."

Councilor Chris Dwyer said she thinks any work session should include all affected department heads, while Councilor Stefany Shaheen said she didn't see the need for a work session because of the detailed NHMA legal opinion.

Councilor Eric Spear said the topic is scheduled to be discussed by the council in May or June and noted there is "so much going on" related to zoning changes and a new budget season.

"We will get to this," Spear said. "I fail to see the necessity of forcing the hand of the city mayor to do it so fast."

City Manager John Bohenko called the NHMA report "well written," but said it is "just one opinion" and he also wants to hear from City Attorney Bob Sullivan, who has "30 years of experience."

Thorsen requested that Sullivan prepare his own report to be used during a future work session.

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